Shreve v. Cornell , 182 Okla. 193 ( 1938 )

I concur in much that is said in Mr. Justice Corn's dissenting opinion and in addition thereto call attention to the fact that we are not here considering the undoubted right of the trial judge to grant new trials in those cases wherein a miscarriage of justice has probably resulted from one of the many things which may happen in the trial of a case, the prejudicial effect of which is peculiarly within the knowledge of the trial judge alone. The question here under consideration is the right of the trial judge to grant a new trial, where the evidence would have supported a verdict either way, for thesole and only reason that he does not agree with the verdict.

The majority opinion is consistent with certain former decisions of this court. The error lies, not in the majority opinion, but in an erroneous rule which it follows instead of overruling. However, the instant case is an ideal illustration of the evil resulting from such a rule.

The amazing result of the rule, as applied to the instant case, is that even though the evidence is overwhelmingly in favor of the verdict, and even though the record itself reveals that truth, and even though the jury and two other juries and two other trial judges in companion cases on the same evidence, making in all three juries and two district judges, have all agreed that the verdict bespeaks the truth, still, if there is a scintilla of evidence to the contrary, the trial judge may, merely because of his "conscience," set said verdict aside at his will. What, then, is the presumption as to the quality of conscience possessed by the other two district judges?

It is admitted by the opinion that whether the verdict receives the approval of the judge's "conscience" is a matter wholly within the knowledge of the judge himself, and that therefore we are not in a position to pass on that question, hence the judgment is affirmed for that reason. Off, then, into that inaccessible realm known as the judge's "conscience" has gone the litigant's valuable right of review. Into that nebulous sphere no mere rule of law, not even the Constitution, may penetrate. It is a high and impregnable wall, entirely surrounding a lone single germ known as the scintilla. Against it may be pitted the combined and cumulative forces of virtually all the evidence, and the rational inferences to be drawn therefrom as known to ordinary men, — all to no avail. The "conscience" of the judge, into which we may not inquire, and which we are forbidden to measure by the more practical rules of law, has for some unknown reason failed to agree with twelve of his fellow men on a question, not of law, but of fact.

The "conscience rule," if it must replace the jury system without a constitutional amendment to that effect, must be expected to produce peculiar results from the standpoint of uniformity. There are 43 district judges, 77 county judges, and a lesser number of superior and common pleas court judges in this state, each possessing that thing which we call his conscience. While these judges are familiar with the principles of law, which are the same in one part of the state as the other and which remain the same regardless of the identity, temperament, and previous experience of the judges, there is no assurance whatever that the conscience of one judge will not materially differ from that of another. In fact, there is no assurance that the conscience of any one judge will remain the same. It may vary, for instance, with his physical condition. At another time or place, or under other circumstances, it may be that the conscience of the trial judge in the instant case would have been perfectly attuned to that of the other two district judges who heard the companion cases on exactly the same evidence, and whose conscience did not prevent them from entering judgment on the verdicts identical with this one, in conformity to the great weight of the evidence.

As I see it, under the "conscience rule," there is no effective right of review. The admission in the majority opinion, quoting from a former decision to the effect that we are not in position to determine whether the verdict received the approval of the judge's conscience, is the very thing that undoes the rule announced. The law has no control over such a thing, the litigant has no control over it, the judge himself often must lose control of it. We do have control and have been getting along pretty well for a number of years with the jury system, cumbersome and subject to criticism as it may be. I deplore the fact that we have now come to the place where we accord the uncertain conscience of the judge superiority over the unanimous verdict of twelve good men, supported abundantly by cold facts in the record, which we may look at, see and understand; and after which the unsuccessful party may leave the court and go about his business, not pleased, but at least assured that his claims have been denied in a regular manner by a jury of his peers, free from any sense of arbitrary injustice imposed by the hand of any one man.

The whole reason for placing the provision in our Constitution making inviolate the right of trial by jury is that the experience of centuries has taught that in the large run of cases over an extended period of time the rights of litigants on disputed questions of fact are better and less corruptly adjusted by juries composed of laymen. But, it is argued, under the rule followed in the majority opinion the litigant does get a trial by jury, in that the only effect of the order is to grant another jury trial. But the point is that there has already been a fair jury trial, — one that is legally satisfactory in every respect, and in which the verdict is overwhelmingly supported by the evidence; except that for some unknown and uninquirable reason the judge's "conscience" has not been pleased. But, aside from that, let us assume that the case is tried in some district where there is but one judge, who professes, of course, to be fair. (It is well to remember that our judicial structure is fashioned in such manner that not only is the judge presumed to be fair but, under the process of appeal, he must be fair.) On account of some whim connected with his "conscience." possibly caused subconsciously by previous experience, let us say he grants the new trial although the evidence abundantly supports the verdict. Is there any assurance that he will not do the same thing the second time, or the third time, when the case is repeatedly called for trial? I suppose the answer to this is that some day a jury eventually will be found which will agree with the judge's idea of who should be the successful party. A jury trial has then been had. Justice has triumphed. The Constitution has been enforced. I leave such reasoning to those who are willing to accept it.

I admit that the instant majority opinion merely follows certain other decisions which have been promulgated by this court from time to time, which in themselves are, in my judgment, grossly erroneous on this point. See the decisions cited therein, and also Nichols Transfer Storage Co. v. Lumpkin, 180 Okla. 350, 69 P.2d 640; Bailey v. Sisson,180 Okla. 212, 69 P.2d 65, to both of which I dissented. We are gradually geting deeper in error, and I do not agree with those who realize the error but are of the opinion that the best solution is a statutory enactment. As I view it, a court always has the inherent power to correct its erroneous rules of law. This court should exercise that public duty.

In 1936 we highly commended a trial judge for refusing to grant a new trial though he stated that he did not personally agree with the verdict, while in 1905 the court reversed a trial judge for doing exactly the same thing. Compare Shabino v. Dolese Bros. Co., 174 Okla. 69, 49 P.2d 686, with Yarnell v. Kilgore, 15 Okla. 591, 82 P. 990. There are several lines of decisions on the question. The Yarnell Case, rendered by a divided court, was the initial flight into the "conscience" realm. It remained dormant for a number of years and has lately been revived and cited.

Throughout the years it has repeatedly been criticized, "explained," and dissented from, never overruled, but often ignored. It should be expressly overruled. The good that may be accomplished by the practice therein permitted is negligible by the side of the oppression thereby made possible. Furthermore, the Oklahoma Constitution had not then been adopted.

Our sworn duty now is to uphold and defend the Constitution. That Constitution, we have often, "guarantees" the right of trial by jury. It is fundamental that a right permitted to be exercised in form only, and not in substance, is the equivalent of no right at all. It is that very right, of trial by jury, which was the inception of the rule that where there is any evidence reasonably tending to support a verdict this court will not reverse the same for lack of evidence. Then, if this court will not reverse such a verdict, even though we may not be in sympathy with it, where does the trial judge acquire so much more power than we have? The same Constitution is binding on him. I apprehend that the answer will be made that he was there, at the trial, and had the opportunity to observe the witnesses. But we have always held that the relative credibility of witnesses is for the exclusive determination of the jury, and we have even held, and uniformly so, that a remark of the trial judge indicating to the jury his belief as to the relative credibility of witnesses constitutes reversible error. Where is the consistency in this? Why reverse him for indicating that he believes a witness credible or incredible, and yet affirm him for entering judgment according to the same belief, in manifest opposition to the jury's appraisement of the witness's credibility? Is it not apparent that in the latter case he has invaded the province of the jury far more deeply than in the former case?

I realize that the prime duty of the trial judge is to see that justice is done. I would not deny him the right judicially to weigh the evidence in the case against the verdict returned by the jury, to weigh it according to applicable rules of law, in keeping with a legal discretion, a discretion exercised and guided by the principles of law, so that same is subject to review. In such a case, if the verdict were so greatly at variance with the evidence as to make it appear arbitrary, then it could truthfully be said that there was no evidencereasonably tending to support the verdict, and that the order granting the new trial should be affirmed. But when the situation is reversed, as in this and the preponderance of the evidence is very patently with the verdict, then I say that the verdict is "reasonably" sustained by the evidence, and that the trial judge has abused his legal discretion in setting that verdict aside on the sole ground that he does not agree with it. Otherwise there is no dependable right of trial by jury. I recognize a clear distinction between the exercise of judicial discretion and the indulgence of an individual conscience. Having these views, I cannot concur in the majority opinion, and therefore dissent.